Mastro v. Brodie

• Decision Date: 07 May 1984
• Citation: Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984)
• Docket Number: 81SC305
• Parties: Edward R. MASTRO, M.D., Petitioner, v. Barbara Jean BRODIE, Respondent.
• Court: Colorado Supreme Court

Page 1162

682 P.2d 1162

Edward R. MASTRO, M.D., Petitioner, v. Barbara Jean BRODIE, Respondent.

No. 81SC305.

Supreme Court of Colorado En Banc.

May 7, 1984.

Rehearing Denied May 29, 1984.

Johnson, Mahoney & Scott, P.C., Paul E. Scott, Brian J. Lampert, Denver, for petitioner.

Spurgeon, Haney & Howbert, P.C., Gregory R. Piche, Colorado Springs, for respondent.

NEIGHBORS, Justice.

We granted certiorari to review the decision of the court of appeals in Brodie v. Mastro, 638 P.2d 800 (Colo.App.1981), reversing the order of the district court granting summary judgment to petitioner, Dr. Edward R. Mastro (Mastro), in a medical malpractice action. The court of appeals held that the malpractice claim of respondent, Barbara Jean Brodie (Brodie), was not barred by the applicable statute of limitations. We affirm the judgment of the court of appeals.

I.

We learn the following facts from Brodie's complaint, deposition, and affidavit filed in opposition to the motion for summary judgment. ¹ On February 5, 1977, Mastro surgically removed a small nodule from the back of Brodie's shoulder. ² He obtained Brodie's consent to the surgery after explaining that she would have a scar, "but it wouldn't be a bad one." Several months later, however, the scar from the surgery became "large, unsightly and uncomfortable." Brodie returned to Mastro in July 1977, but received no further treatment and no explanation of what had happened. He told her only that "there was nothing else he could do about [the scar]." Since that time, Brodie has had no contact with Mastro. She received treatment, including a series of injections into the scar, from two other physicians during the next two years. She also discussed the scar with at least two attorneys for whom she worked during this time period. Her scar, however, has remained approximately the same in size and appearance as when she first became aware of it. In August 1979, a physician at the University of Colorado Medical Center informed Brodie that she had developed a "keloid" ³ on her shoulder. Further, he told her that a surgical procedure on the shoulder of young, dark-skinned individuals frequently results in the formation of a keloid, which, while unpredictable, does occur in a percentage of such patients. He indicated to Brodie's attorney that "the risk of keloid should have been anticipated" and that Mastro should have warned Brodie of such a risk before operating on her shoulder. ⁴

Three months later, in November 1979, Brodie filed a complaint against Mastro in the Pueblo County District Court alleging medical malpractice. She claimed that, when she consulted him about the nodule on her shoulder, Mastro knew or should have known of the inherent risk of keloid development in a person with her physical characteristics, and that he knew or should have known that disclosure of this risk "would be of great significance to a person in [Brodie's] position in deciding to submit to surgery." Since Mastro was "under a duty to inform [Brodie] of any substantial or special risks inherent in the procedure," his failure to mention keloid scarring before the surgery prevented her from making "an intelligent choice as to alternative treatments consonant with the underlying premise of informed consent." As a result, Brodie suffered "a serious, permanent disfiguring injury" in the form of "a large, unsightly growth" that was "plainly visible on her shoulder." While admitting that she was aware of the scar by July 1977, Brodie concluded by alleging that she was not aware and could not reasonably have been aware of "[Mastro's] negligence in failing to inform her" of the high risk of keloid formation until she consulted the physician at the medical center in August 1979, at the direction of her attorney.

After depositions of the parties were taken, Mastro filed a motion for summary judgment, claiming that the two-year statute of limitations for medical malpractice actions based on lack of informed consent barred Brodie's claim. See section 13-80-105(1), C.R.S.1973 (1983 Supp.). ⁵ Under this provision, the two-year period begins to run when the injured person discovers or in the exercise of reasonable diligence should have discovered "the injury." Mastro claimed that there was no genuine issue of material fact since Brodie "has admitted that she knew of the injury (unsightly scar) more than two years prior to initiation of her Complaint."

Brodie filed a memorandum opposing the summary judgment motion. She acknowledged that her "claim in this action is based upon [Mastro's] ... failure to secure her 'informed consent' " before operating on her shoulder. However, she argued that section 13-80-105(1) also contains an exception which, in her view, tolls the two-year statute of limitations if the act or omission giving rise to a cause of action is "knowingly concealed." See section 13-80-105(1)(a), C.R.S.1973 (1983 Supp.). ⁶ Relying on this provision, Brodie argued that Mastro "knowingly concealed" from her the high risk of keloid formation. She stated in her affidavit that she did not learn of the existence of this risk until August 1979, when she consulted the surgeon in Denver about her scar.

The district court granted the motion for summary judgment. It concluded that the two-year statute of limitations began to run no later than July 1977, when Brodie returned to Mastro's office "to complain about the enlarged scar," and expired in July 1979, four months before she filed her complaint. The court explained its decision in terms of when Brodie discovered her "injury":

"In July, 1977, the scar had achieved such proportions that [she] returned to [see Mastro] because the scar was large, unsightly and uncomfortable. [Brodie] discovered the injury in July, 1977, at the very latest. She was fully aware of it at that point, and its very existence made her cognizant of the risks involved in the February 5, 1977, surgery. She knew that a keloid formation was not only a risk but a reality for shoulder surgery on a young, dark-skinned female."

A divided panel of the Colorado Court of Appeals reversed the judgment of the district court. The majority conceded that, "[i]f the only allegation here was uninformed consent," the two-year statute of limitations in section 13-80-105(1) would bar Brodie's action. ⁷ However, since Brodie also alleged knowing concealment against Mastro, the court decided that the exception provided by section 13-80-105(1)(a) might be applicable to Brodie's action. According to the majority, the issue was whether Mastro knowingly concealed from Brodie the high risk of keloid scarring to one of her skin pigmentation. ⁸ Since the evidence on this issue was "contradictory," the court concluded that it "should not have been disposed of by summary judgment." Brodie, 638 P.2d at 801. ⁹

II.

Brodie's claim for medical malpractice is premised on the theory of lack of informed consent prior to the surgery which occurred on February 5, 1977. Her complaint was not filed until November 19, 1979. Mastro pleaded the affirmative defense of the statute of limitations contained in section 13-80-105, C.R.S.1973 (1983 Supp.). In order to avoid the two-year statute of limitations defense, Brodie relies upon the knowing concealment exception contained in section 13-80-105(1)(a). Thus, the first issue to be resolved is whether knowing concealment is an exception to the two-year statute of limitations.

A.

Section 13-80-105(1) establishes a two-year statute of limitations for medical malpractice actions based on lack of informed consent. The statute provides:

"No person shall be permitted to maintain an action, whether such action sounds in tort or contract, to recover damages from ... any person licensed in this state ... to practice medicine, ... on account of the alleged negligence, breach of contract, or lack of informed consent of such person in the practice of the profession for which he is licensed ... unless such action is instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury. In no event may such action be instituted more than three years after the act or omission which gave rise thereto, subject to the following exceptions: "

(Emphasis added.) The underlined language creates a three-year statute of repose, subject to statutory and judicial exceptions. See Austin v. Litvak, 682 P.2d 41 (Colo.1984). The exception for knowing concealment in section 13-80-105(1)(a) states:

"If the act or omission which gave rise to the cause of action was knowingly concealed by the person committing such act or omission, ... then such action may be instituted within two years after the person bringing the action discovered, or in the exercise of reasonable diligence and concern should have discovered, the act or omission, ..." ¹⁰

In construing these provisions, we conclude that a medical malpractice claimant must file an action within two years after he or she "discovered, or in the exercise of reasonable diligence and concern should have discovered, the injury." Section 13-80-105(1). In addition to this period of limitation, the repose provision proscribes the filing of an action more than three years after the act or omission which gave rise to the claim. However, section 13-80-105(1)(a) contains two exceptions to the three-year period of repose. First, the claim is not barred if the person who committed the act or omission knowingly conceals that fact. Second, the claim is excepted from the period of repose if the physician left an unauthorized foreign object in the claimant's body. Under either exception, however, the medical malpractice action must be filed within two years after the plaintiff discovers or should have discovered the defendant's act or omission. We are persuaded that the knowing concealment and foreign object exceptions apply only to the three-year statute of repose and not...